The CIA’s War On Terrorism – Another Source of ATS Lawsuits?

by Julian Ku

As the fighting over the U.S. military’s conduct of the war on terrorism, particularly its conduct in Guantanamo Bay, may be heading toward some resolution as a result of new legislation, attention is now turning to the CIA’s activities in the war on terrorism.

The CIA certainly seems busy. Recently, an alleged Al Qaeda leader was mysteriously blown up in Pakistan, perhaps as a result of a CIA missile from an unmanned Predator aircraft. Meanwhile, the Washington Post has this long report on the CIA’s system of “extraordinary rendition” and its alleged network of detention centers for suspected Al Qaeda members. The Post has also has this report on the CIA’s alleged abduction of a radical Islamic cleric in Italy (misleading Italian authorities in the process). Moreover, Secretary Rice is being hounded in Europe with questions about CIA use of German airfields for its rendition policy and its “secret” prisons.

Intelligence activities are not, as far as I’m aware, generally regulated under formal international law e.g. through some international treaty. Of course, certain – in fact, many- activities engaged in by intelligence agencies plainly violate general principles of international law. Taking satellite photos, intercepting wireless communications, and old-fashioned human spying often violate another country’s sovereignty. More seriously, intelligence agencies sometimes engage in targeted assassinations, abductions, and very severe interrogation techniques (tantamount to torture).

In the old days, the most important check on intelligence agencies like the CIA (other than domestic oversight) was the threat of retribution against their own agents from the other side. The CIA and KGB had a tacit agreement not to kill or torture agents they caught from the other side. I somehow doubt the CIA has any similar deal with Al Qaeda – as a result, all gloves are off.

But the rise of the Alien Tort Statute opens another avenue for checking the CIA. Those mistreated by the CIA can have their day in U.S. court and, for what is probably the first time, we may see CIA policies directly challenged under international law standards. For better or for worse, I foresee the CIA becoming the new defendant du jour in the ongoing litigation over the conduct of the war on terrorism.

2 Responses

Prof. says “Those mistreated by the CIA can have their day in U.S. court and, for what is probably the first time, we may see CIA policies directly challenged under international law standards. For better or for worse, I foresee the CIA becoming the new defendant du jour in the ongoing litigation over the conduct of the war on terrorism.”

I very much doubt it. If push came to shove at this level, I expect, and certainly hope, Congress would pare back the ATS in this area. It’s long been my belief that the ATS has, like the blob in the horror movie of yesteryear, ever expanded into areas it has no business being involved in and threatens to devour those in its path.

12.06.2005
at 10:59 am EST anonymous

Julian’s post is quite timely. The ACLU’s complaint on behalf of German citizen Khaled el-Masri, whom the CIA rendered from Macedonia to Afghanistan for interrogation purposes, has just been filed. In addition to an unlikely Bivens claim asserting substantive and procedural due process violations, el-Masri asserts ATS claims for (a) torture/CID treatment and (b) prolonged arbitrary detention. Setting aside the almost inevitable attempt by DOJ to have the case dismissed on “state secrets” grounds, this approach (particularly the prolonged arbitrary detention argument) raises issues specifically left open by the Court in 2004’s Sosa v. Alvarez-Machain.

12.06.2005
at 12:06 pm EST Bobby Chesney

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